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Supremely Representative

Should the Nation's Highest Court Look Like America?

Barbara A. Perry, Guest ColumnistJune 4th, 2009

The U.S. Constitution is utterly silent on qualifications for members of the federal judiciary. Theoretically, a justice does not even have to be a lawyer, but, in practice, all 110 justices in the Supreme Court’s 220-year history have been attorneys. With no constitutionally mandated selection criteria, presidents have been free to determine the standards by which they choose nominees. Professor Henry Abraham, the nation’s leading Supreme Court expert, has identified four primary selection criteria that presidents have used in the appointment process: 1) merit, 2) ideology, 3) friendship, and 4) representation.

Some observers argue that merit, like beauty, is in the eye of the beholder, but an objective definition would include keen intellect, superb education, effective communication skills, judicial temperament, impeccable moral character, and diligence. Ideally, merit should be at the top of every president’s list, and most of the justices in the U.S. Supreme Court’s history have possessed genuinely impressive qualifications. Those justices considered among the “greats” reflected these traits to the highest degree. John Marshall, Oliver Wendell Holmes, Louis Brandeis, Hugo Black, Felix Frankfurter, and Earl Warren are enshrined in the Court’s pantheon.

The tribunal’s current members are considered the most intellectually gifted since the scholarly Roosevelt Court of the 1940s. Harvard, Yale, Princeton, Columbia, and Cornell are among the Ivy League schools with alums on the contemporary Supreme Court. Other first-rate institutions of higher learning, such as Stanford, Chicago, Oxford, and the London School of Economics, have also prepared the current justices for the cerebral rigors of their judicial duties. Six of the nine were elected to Phi Beta Kappa, the nation’s premier honor society; one received a prestigious Rhodes Scholarship; two-thirds served on their school’s law review; and two garnered plum clerkships at the Supreme Court after law school.

President Barack Obama’s choice, U.S. Second Circuit Court of Appeals Judge Sonia Sotomayor, possesses equally impressive educational and professional credentials. A summa cum laude and Phi Beta Kappa graduate of Princeton, she earned her law degree from Yale Law School, where she was an editor on the law journal. Her dozen years of private practice in New York gave her experience in corporate law, followed by a five-year stint as a local prosecutor in the Big Apple. If confirmed, Sotomayor will be the among the few Supreme Court justices in history who served on both a federal district court and the intermediate appellate bench. She may be unique in her appointments to those courts by two different presidents (Bush I and Clinton) from two different political parties. In addition, she has already endured intense questioning before the Senate Judiciary Committee and survived the opposition of 25 GOP senators in 1998. All told, she has spent seventeen years in the federal judiciary, eclipsing the current record holder on the high court, Justice Samuel Alito, who served a decade-and-a-half on the U.S. Third Circuit Court of Appeals.

Not surprisingly, presidents always search for ideologically/politically compatible jurists who, the chief executive hopes, will implement his views on specific issues and constitutional interpretation. Judicial experience can preview these factors, which is why we have not seen the appointment of someone other than a sitting judge since Richard Nixon nominated Lewis Powell and William Rehnquist in 1972. Neither had ever served on a state or federal bench. This is not to say that all presidents have judged their nominees’ ideology accurately or that judges have not changed while on the Supreme Court “for good behavior,” in effect, for life. Retiring Justice David Souter was thought to be a conservative Republican when nominated by George H. W. Bush in 1990. Yet the taciturn New Hampshire judge’s votes began to display a liberal bent early in his tenure on the Court. Heading into retirement, Dwight Eisenhower reportedly declared that the two worst mistakes of his presidency were “both on the Supreme Court,” a reference to Chief Justice Earl Warren and Associate Justice William Brennan. Ike thought he was nominating conservative Republicans in Warren and Brennan. Much to Eisenhower’s chagrin, they led the liberal revolution of the Warren Court in the 1950s and ’60s. Yet, with the exception of Souter, and perhaps swing justice Anthony Kennedy, the other seven members of the current bench have generally hewed to the ideology of their appointing president. In fact, eighty percent of the justices throughout the Court’s history have done so. What makes President Obama’s selection of Sotomayor especially intriguing is the fact that he is the most experienced constitutional law scholar to occupy the Oval Office since President William Howard Taft a century ago. In the relatively recent development of presidents personally interviewing their “short list” of potential Supreme Court nominees, Obama did not have to rely on staff to bring him up to speed on constitutional theory or judicial controversies, which allowed him to concentrate on Sotomayor’s charismatic personality and compelling biography.

Personal or professional friendship has also been an occasional criterion for presidents in their appointments to the Supreme Court. President John F. Kennedy had known his nominee, Byron White, since their meeting in pre-World War II London, when JFK’s father was U.S. ambassador to England and White was a Rhodes Scholar at Oxford. Justice Abe Fortas had been a long-time friend and political ally of his appointing president Lyndon Johnson. Yet George W. Bush’s abortive nomination of his Texas friend and White House counsel Harriet Miers proved utterly disastrous because she did not appear to meet the definition of merit and because her ideology was suspect among the base of the president’s own party. If Obama had emphasized the friendship criterion, he likely would have chosen U.S. Seventh Circuit Court of Appeals Judge Diane Wood or Solicitor General Elena Kagan, both of whom were his colleagues at the University of Chicago Law School, where the president taught as an adjunct professor for fifteen years.

One of the most complex factors used by presidents in the history of federal judicial appointments is representativeness. The concept may seem more apposite for the legislative and executive branches. We usually consider the president and Congress, directly elected by the American people, to be at least relatively representative of the body politic. Our idealized view of judges, however, posits that they should be above any preference toward groups or constituencies in society. Judges are supposed to be neutral arbiters of the law, following legal precedents and applying them to the facts in a case. Judges’ personal/political/ideological/sociological backgrounds are not supposed to play a role in their decisions. As Chief Justice John Roberts explained in his 2005 Senate Judiciary Committee hearings, judges are analogous to baseball umpires, calling the balls and strikes as they see them, with no bias toward either team.

Yet judges can be representative and still aspire to the neutrality that we expect of jurists. Political theorist Hanna Pitkin conceptualized what she called “descriptive representation,” which looks at who the representative is or what he or she is like rather than what he or she does. As Pitkin observed, “The representative does not act for others; he ‘stands for’ them, by virtue of a correspondence or connection between them, a resemblance or reflection.” Other theorists have called this view “passive representation,” or the mirroring of societal characteristics, as contrasted with “active representation,” which entails the vigorous pursuit of the interests of the represented.

Although this distinction seems clear enough, in practice, the demarcation between active and passive representation can blur in judicial behavior. Examples of the most widely used representative characteristics in nominations of U.S. Supreme Court justices include geography, religion, race, and gender. Every president from George Washington to Ulysses S. Grant recognized geographic suitability among his selection criteria. Whether it was for political reasons (rewarding a state for electoral support or assuring it or a region that its concerns would be protected, especially prior to the Civil War), symbolic considerations (making the Court appear to be reflective of the states and regions in the United States), or practical issues (choosing residents of judicial circuits to serve on the Supreme Court and consequently on their “home” court of appeals before Congress created appellate judgeships in 1891), presidents had numerous motivations to represent (in all senses of that term) geographic interests on the nation’s highest court.

In the case of social characteristics like religion, race, and gender, presidents often hoped to assure new and/or marginal groups in society that he cared about their concerns and would increase the legitimacy of the Supreme Court by having it reflect more constituencies extant in the nation. As immigrant groups flocked to the United States in the late 19th century, boosting the number of Catholics and Jews in the population, presidents became more interested in appointing members of minority religions to the Supreme Court with hopes of attracting their votes. In fact, a “Catholic seat” and a “Jewish seat” emerged on the high tribunal by the early 20th century. More recently, however, the passive and active forms of representation conflicted. For example, Justices William Brennan and Antonin Scalia, both devout Roman Catholics, voted completely oppositely on the abortion issue, with Brennan supporting a woman’s right to choose and Scalia denying that such a right exists.

As American electoral politics evolved, and Catholics and Jews became more assimilated into society and government, religious affiliation began to wane as a criterion for Supreme Court nominees, to be replaced first by race (in the 1960s), then gender (in the 1980s), and now ethnicity (as of the Sotomayor nomination). The fading of religious affiliation as a consideration carrying symbolic weight meant that presidents were free to appoint members of the Catholic and Jewish faith in numbers that filled more than one seat. If Sotomayor is confirmed, she will become the sixth Catholic on the current bench and will join two Jewish justices (Ruth Bader Ginsburg and Stephen Breyer). The move from a “Catholic seat” to a “Catholic Court” exemplifies a shift from electoral considerations (attracting Catholic votes through mere symbolism) to ideological ones (conservative Catholics joining forces with Christian fundamentalists to implement their common social agenda). Sotomayor’s presumed liberalism, however, casts her in the role of her predecessor, Justice Brennan.

In racial terms, Clarence Thomas embodies the dilemma of symbolic versus active representation. The black community’s nearly unanimous opposition to his 1991 nomination by the first President Bush stemmed from the fact that the justice he replaced, Thurgood Marshall, was an icon of the civil rights movement, whereas Thomas was on the record as opposing modern efforts to promote minority interests, such as affirmative action. The tension between passive and active representation, when the latter does not match the views of the group being symbolically represented, can actually embitter the very constituency the president was trying to woo.

Justices Sandra Day O’Connor and Ruth Bader Ginsburg, while certainly conveying symbolic triumphs for women by rising to the highest judicial positions in the land, also actively represented women’s interests in their jurisprudence. Indeed, although O’Connor was generally a moderate conservative on most issues, she nearly always represented the liberal position promoting women’s causes in gender cases. Paradoxically, President Ronald Reagan, who opposed affirmative action policies, appointed O’Connor in 1981 to be the first female U.S. Supreme Court justice. He did so to close the “gender gap” that had appeared in his 1980 electoral tally, when men voted for him at a higher rate than women. By nominating the first Latina justice, Obama is rewarding and attempting to cement the support of two-thirds of the Hispanic voters who cast their ballots for him in 2008. Whether Sotomayor would actively represent Latino interests on the high bench remains to be seen. The president is also trying to assuage the disappointment of women who wanted Justice O’Connor to be replaced by a female justice in 2005. (Justice Alito took her seat after the failed Harriet Miers nomination.) Yet pro-choice groups are leery of the fact that Sotomayor possess a thin record on abortion and, in some decisions, has reached pro-life results. In litigation involving gender, racial, and ethnic discrimination, she has more frequently opposed the minority or female plaintiff. Nevertheless, her vote, affirming the dismissal of the white firefighters’ suit against New Haven for scrapping a promotion exam after African Americans scored poorly, has drawn intense scrutiny. In a potentially awkward coincidence for Sotomayor, the Supreme Court (in Ricci v. DeStefano) might overturn her decision at the end of its term in late June, just as the Senate Judiciary Committee prepares to begin hearings on her nomination.

Justice O’Connor always portrayed an aversion to the impact that gender made on her jurisprudence. As she explained to me in a 1985 interview, “Each of us is the sum total and product of our experiences.” The first woman justice emphasized, however, that she could not say that the sex discrimination she faced early in her career affected her views in individual cases. She attempted to decide each one from an “objective legal viewpoint.” Perhaps more candidly, Judge Sotomayor has admitted, “I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.” Later in O’Connor’s tenure on the Supreme Court, she frequently cited Minnesota Supreme Court Justice Jeanne Coyne’s view that “a wise old man and a wise old woman reach the same conclusion.” In a lecture on judicial diversity, for the University of California, Berkeley’s La Raza Law Journal’s 2001 symposium, Judge Sotomayor reflected on O’Connor’s aphorism, observing, “I am . . . not so sure that I agree with the statement.” She then used the unfortunate comparative term “better” to describe the conclusions that a “wise Latina woman with the richness of her experiences” would reach in contrast to “a white male who hasn’t lived that life.” After intense reaction from the conservative “echo chamber,” where the “racist” label reverberated, Obama tried to soften the impact of Sotomayor’s wording. “I’m sure she would have restated it,” he offered. Trying to regain control of his nominee’s image by focusing on her compelling personal story as the child of Puerto Rican immigrants, the president explained that Sotomayor simply meant that “her life experiences will give her information about the struggles and hardships that people are going through.” Without explicitly uttering the “e-word,” he circled back to “empathy,” which he had frequently cited as a crucial criterion for his Supreme Court appointment. The president is ill served by focusing on that aspect of his first nomination to the high tribunal. It subjects Sotomayor to charges that she lacks the judicial temperament to decide cases in a neutral fashion and is a judicial activist who strays from the words of the Constitution and statutes to impose her own sense of what the law means. Conservatives emphasize the contrast with judicial restraint, which, they argue, attempts to construe law strictly, according to its literal denotation or the “original intentions” of its framers.

President Obama would strengthen the case for Sotomayor’s Senate confirmation by citing a tradition that dates to George Washington–creating a balanced, representative Supreme Court in order to maintain its legitimacy. As Justice O’Connor expressed it, the Court only possesses the “power of the pen”; and, therefore, to gain public acceptance, it must not be of a “single image” or a “single mold.” Like political and ideological compatibility, representativeness is a fact of Supreme Court appointment history and is destined to remain on the judicial nomination scene. Even conservative William Rehnquist conceded to me in 1985 that “diversity is desirable” on the Court as long as merit serves “as a floor” for nominees. Alexis de Tocqueville correctly observed nearly two centuries ago that “the peace, prosperity, and very existence of the Union rest in the hands of . . . federal judges.” Thus, whether those hands are black, white, brown, yellow, male, or female, is not nearly as important as whether they can craft interpretations of the law that will continue to preserve the aspirations emblazoned on the U.S. Supreme Court’s pediments: “Equal Justice Under Law” and “Justice: The Guardian of Liberty.”

Dr. Barbara A. Perry is the Carter Glass Professor of Government at Sweet Briar College and the author of six books on the U.S. Supreme Court, including “The Supremes”: An Introduction to the U.S. Supreme Court Justices (Peter Lang), A “Representative” Supreme Court? The Impact of Religion, Race, and Gender on Appointments (Greenwood), The Michigan Affirmative Action Cases (University Press of Kansas), and Catholics and the Supreme Court (Georgetown University Press, forthcoming). In 1994-95, she was a Judicial Fellow at the Supreme Court.